Ownership of Unlawful Wealth from Islamic Legal Perspective

Transcription

1 World Applied Sciences Journal 35 (8): , 2017 ISSN IDOSI Publications, 2017 DOI: /idosi.wasj Ownership of Unlawful Wealth from Islamic Legal Perspective Badruddin HjIbrahim and Azizah Mohd Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia Abstract:This study examines the issue of ownership of unlawful wealth under Islamic law. The question is whether unlawful wealth either with respect to its substance or its acquisition is legally owned under Islamic law. In another words, whether Islam legally recognizes unlawful wealth with respect to ownership. The study examines the concept of ownership and means of acquiring ownership; and the concept of unlawful wealth and its position under Islamic law. The discussion extends to the position of unlawful wealth with respect to ownership particularly the wealth which is acquired by unlawful means like gambling, trading of unlawful substance, bribery etc. The research is a library research where the issue will be examined from the perspective of the Qur an and the Sunnahas primary sources of Islamic law and follows with the examination of the view of Muslim jurists of four well known schools of law as well as the view of contemporary Muslim scholars. It is hoped that the study may provide a clear reference and guideline regarding the concept of ownership and unlawful wealth in Islamic law that is significant and beneficial to all in our present day. Key words: Ownership Unlawful Wealth Islamic Law Unlawful Means. INTRODUCTION The love of human being in wealth is usually loves to own, accumulate and to grow it which dominates his life Human being is created with the instinct of loving the till death. In principle, Islam does not deny this instinct pleasure of this worldly life. The Qur an states, but fully recognized right of a person either men or women to ownership of wealth. There are many verses of the Beautified for men is the love of things they covet: Qur an states to the effect. Among others it clearly state, women and children; much of gold and silver; To men is allotted what they own, and to women what branded beautiful horse; and cattle and well tilled they own (The Quran, 4: 32). In another verse, the land. This is the pleasure of the present world s life; Qur an states, but Allah has excellence return (Paradise with flowing rivers) with Him. (The Quran, 3: 14) Do they see, We Who have created for them-among other things which our hands have fashioned-cattle, One of the basic instincts of human being either man which are under their dominion? (The Quran, 36:71). or woman is love of wealth. They love wealth very much. The Qur an states, And ye love wealth with inordinate Nevertheless, Islam laysdownrules and regulation love! (The Quran, 89:20). In addition, the Sunnah of the relating to ownership of wealth as guideline and guidance Prophet also reiterates the matter, particularly with respect to means of its acquisition. It is reported by Anas that the Messenger of Allah says: If the son of Adam were to possess two valleys of wealth, he would long for the third one. And the stomach of the sons of Adam is not filled but with dust. And Allah forgives that who repents. (Imam Muslim; Sahih Muslim) Concept of Ownership in Islam: Ownership in Arabic word is milk and literally means holding something and capable of occupying it [1]. Legally, there are many definitions given by classical Muslim jurists and contemporary Muslim scholar. Some of them define ownership as a legal ruling like Imam al-qarafi of Corresponding Author: Badruddin HjIbrahim, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia. 1512

2 the Maliki jurist. According to him ownership is a legal benefit from it in a normal situation as according to ruling relating to a tangible object or usufruct that gives Islamic law (Shari ah) [5]. It includes corporal matters or a person who has relationship with it an ability to utilize tangible object like car, house, land etc; usufruct or what he owned and to make it as means of exchange [2]. intangible object like usufruct of land, home, care and so Some other defines ownership on the basis of its forth; right attach to property (intangible) like copy right, objective for example, Ibn al-humam of Hanafi jurists. He royalty, trademark, trade name, right to compensation defines ownership as an ability to do disposition which is and so forth. established by The Law Giver from the very beginning [3]. Not all types of wealth are permissible for ownership. Meanwhile anothers define ownership as a relationship In principle there are four types of wealth that are not between a person with a thing for instance, Sadar al- permissible for ownership. Firstly is a corporal object that Shari ah and al-jarjani of the Hanafi jurists. According to has no any benefit, for instance some type of insect like Al-Jarjani ownership is a legal relationship between a fly or mosquito. This is because the legalization of person and a thing which allows that person to dispose of ownership is for the purpose of taking benefit from it [7]. it to the exclusion of everyone else [4]. Many Thus it is useless to own a thing that cannot take benefit contemporary Muslim scholars provide definition of from it. Secondly is the prohibited corporal matter and ownership based onthis basis [5] for example al- Abbadi usufruct like wine, swine and dead animal [7]. and Abdullah al-muslih. Al-Abbadi defines ownership as Nevertheless, according to Hanafi jurists, wine and a special relationship of a person with a thing that the law swine are considered as wealth for non-muslim [8]. gives him right solely to utilize and dispose it from the Thirdly are all types of wealth which are specified for very beginning except when there is an impediment [5]. public usage like road, bridge, river and so forth. These According to Abdullah al-muslih, ownership is a legal types of wealth are meant specifically for the interest of relationship between a person and something (owned) public and not permissible to be owned by individual which enable him alone to utilize and dispose it from very person [9; 7]. Lastly is the wealth that relating to the right beginning except if there is an impediment [6]. of Allah such as mosque, charitable endowment and It seems that the definition of ownership which is wealth of public treasury (bait al-mal) which are based on the relationship between a person and wealth administered by the government for the interest of public that manifests the true nature of ownership. The definition at large [7, 9]. clearly shows that ownership is a legal relationship These types of wealth are not permissible to be between a person with wealth be it tangible object, owned under Islamic law. Other than that it is permissible usufruct or rights. This indicates that in case if the law for ownership. recognizes such relationship, the ownership exists and if the law does not recognize such relationship the Types of Ownership and Means of Its Acquisition: ownership would not certainly exist. The primary Muslim jurists have classified ownership into many types objective of this relationship is to enable a person to and based on various considerations [10]. One of the utilize and dispose of the wealth unless there is an classifications is based on its owner. There are mainly impediment on the part of person like minority, lunatic or three types of ownership under Islamic law as based on immature. These rights of utilization and disposition are this classification: personal ownership, public exclusively for the one who has such relationship and the ownership and ownership of public treasury (bayt al-mal) other person is prevented from having such right unless [5]. The personal ownership, which is the focus of this with his permission or when there is a legal authorization. study, refers to a type of ownership where its owner is a Thus, we can conclude that ownership is a legal specific person or a number of persons by means of relationship between person and wealth that makes him sharing [5]. ability to dispose of such wealth exclusively as long as Again this type of ownership is further divided into there is no legal impediment and exclude others from two types: perfect ownership and imperfect or partial dealing with it except with permission and legal ownership. Perfect ownership is a legal and beneficial authorization. ownership. This means that the owner legally owns the wealth and its usufruct and has a right to enjoy such Object of Ownership: The above discussion shows that wealth and its usufruct. The specialty of this type of the object of ownership is wealth. According to the ownership is that its owner has full right over the wealth majority of Muslim jurists wealth is anything that has a either with respect to corpus and usufruct [7]. The owner material value among the people and permissible to take has full authority to utilize and dispose of his wealth as 1513

3 according his wish but nevertheless it is subjects to the corruption, prostitution, human trafficking, trading of restriction imposed by the shari ah. In addition, such prohibited items like liquor, pork etc. [16]. Both of these enjoyment is not limited by the time frame except it is two types of wealth are not recognized in Islam. This is transferred to another person by means of transaction and because the means of acquisition is prohibited by inheritance or it is damaged [10]. shari ah. The Qur an states, Partial ownership is a legal ownership without beneficial ownership or vice versa. This means that an And eat up not one another s property for vanities owner merely owns the object but not its usufruct or nor give bribery to the rulers that you may knowingly owns the usufruct only i.e. having the beneficial right eat up a part of the property of other sinfully. (The only but not own the object [11]. Quran, 2:188). As mentioned above, Islam recognizes individual ownership of wealth. It organizes various means in According to al-qurtubi (the learned Maliki scholar of acquiring ownership of wealth as a respond to the need of Cordova, Andalusia, d. 671H), the meaning of this verse person according his/her natural and basic instinct which is that some of you should not eat up the property of is in line with the rule of justice and fairness and without other person unjustly which includes gambling, cheating, causing any harm or injustice to the others. There are usurpation, denying other person s right, and by means mainly three means of acquisition of wealth that are which is not consent by its owner or by means which is recognized by Islam. Firstly is through works or taking prohibited by shari ah even though there is a consent by hold of all permissible things like fishing and hunting. its owner such as by means of prostitution, soothsaying, Secondly is through the medium of contract whether selling of alcohol and pork and so on [17]. In addition, he contract of exchange like sale and all of its types, or further asserts, contract of donation like gift (hibah), bequest (wasiyah) and waqf. Thirdly is through succession or inheritance Anyone who takes a property of other person by [10; 7]. In addition, some person may receive a wealth way which is not permissible by shari ah, in fact he through other means like zakat, alms, present, royalty, takes such property unjustly. [17] gratuity, bonus, pension and compensation. In another verse, the Qur an states, Meaning of Unlawful Wealth: Unlawful wealth refers to a wealth which is prohibited by shari ah and a wealth O ye who believe! Eat not up your property among which is acquired by unlawful means [12]. yourself in vanities; but let there be among you trade The Muslim jurists have classified unlawful wealth by mutual consent. (The Quran, 4: 29). into two main categories: unlawfulness because of its attribute or substance (muharram li wasfihiwa aynihi) In this verse, IbnKathir (The Shafi I scholar of the and unlawfulness because of its acquisition (muharram eighth century hijrah, died 774H/1373 A.D.) asserts that li kasbihi) [13, 14]. The first category refers to all type of Allah al-mighty prohibits His believers servants from tangible object which is physically prohibited by shari ah eating one another s property for vanity, that is by any because of its harmfulness or dirtiness such as liquor, unlawful means such as by taking interest, by means of pork, dead animal and blood [15, 16]. This category of gambling and so on [18]. Thus, the acquisition of property wealth is by itself unlawful. by means which is not permissible by shari ah whether The second category of unlawfulness is because of with consent or without consent of its owner, is other factor which is not related to its substance, as its prohibited in Islam. substance is not dirty or harmful like the first category, but it is related to the means of its acquisition which is Ownership of Unlawful Wealth from Islamic Legal prohibited by shari ah [15, 16]. This type of unlawful Perspective: The above discussion indicates that the wealth is of two types. Firstly, wealth which is acquired unlawful wealth are mainly divided into two types: not based on the consent of its owner such as wealth unlawful wealth because of its substance and unlawful which is acquired by means of theft, misappropriation and wealth because of its acquisition. Again the unlawful breach of trust. Secondly, wealth which is acquired wealth because of its acquisition further divided into two through consent between the parties involved but it is types: unlawful wealth which is acquired without the not recognized by Islamic law such as taking interest consent of owner and unlawful wealth which is acquired (riba) or wealth which is acquired by means of gambling, with the consent of owner. 1514

4 The Muslim jurists are in agreement that the favour. This means that unlawful wealth will not become ownership is not established on unlawful wealth because lawful by the judgment of the court. Because the judge of its substance such as wine, swine and dead animal. As gives judgment based on outward fact or evidence and mentioned above, this type of wealth is not permissible thus the judgment will not change the inward or actual for ownership and it cannot be the object of ownership ruling. Umm Salamah narrated that the Messenger of [7]. Because it is not considered as wealth for Muslim as Allah (p.b.u.h) says: well as non-muslim according to majority of Muslim jurists [8]. The Qur an states, "Indeed you come to me with your disputes, and I am only a human being, perhaps one of you is more Forbidden to you (for food) are the dead animal, eloquent at presenting his argument than the other. blood, the flesh of swine and that on which Allah s If I judge for one of you, giving him something from name has not been mentioned while slaughtering the rights of his brother, then it is only a piece of the (that which has been slaughtered as sacrifice for Fire that I am giving him, so do not take anything other than Allah or has been slaughtered for idol) from it." (al-tarmidhi) and that which has been killed by strangling, or by violent blow, or by headlong fall, or by goring of This is based on authority of the Qur an, it clearly states, horns, and that which has been (partly) eaten by a wild animal, unless you are able to slaughter it And do not eat up your property among yourselves (before its death), and that which is sacrificed for vanities, nor use it as bait for the judges with (slaughtered) on stone-altars (The Quran, 5: 3). intent that ye may eat up wrongfully and knowinglly some of (other) people s property (The Quran, 2: Ahmad Farraj Husayn asserts that the ownership is 188). based on the permissibility of utilization. What is permissible for utilization, it is valid to own it. And what Imam Qurtubi in explaining this verse contends that, is not permitted to utilize it, it is not valid to own it [7]. With regard to the unlawful wealth which is acquired whoever takes the property of other wrongfully is without the consent of owner such as stealing, considered as eating the property unlawfully. One of usurpation, misappropriation, criminal breach of trust, the the instance of eating property unlawfully is when Muslim jurists are in agreement that the ownership is also judge gives judgment in your favour and you are not established on it. They are of the view that a person kwnowinglly that you are wrong. Thus unlawful will who has taken the wealth of other by way of usupation not become lawful by the judgment of the court, this or unlawful means has to return it to original owner in is because the judge gives judgment based on case if the wealth is still in existence and in case if the apparent or outward fact and evidence. This is a wealth has damaged or has been consumed he is liable for concensus of Muslim jurists on issue relating to compensation[19; 15]. This is also the position of many wealth... [17] contemporary Muslim scholars [10]. It is based on the authority of sunnah, Regarding the unlawful wealth which is acquired with the consent of the owner such as from usury, gambling, It is reported from the Messenger of Allah (peace be prostitution or trading of the prohibited item, the Muslim upon him) that: it is liable on the hand (person) with jurists of four well-known schools of law, the Hanafi, respect to something that has taken till he returns it. Maliki, Shafi i and Hanbali, are also in agreement that the (Abu Dawud) ownership is notestablished in it. Al-Turi of the Hanafi jurists clearly states that if a person sells a wine, the seller It is also reportrd that the Messenger of Allah (peace is not owned the price from the sale because it is invalid be upon him) says, whoever found his property with [20]. In addition, al-kasani of the Hanafi jurist asserts that someone who is insolvent, he is more entitle to it than any unlawful is not suitable to be the cause of establishing other person. (al-nasa i, Ibn Majah) ownership. This is because the ownership is a blessing, In addition, taking property of other person by and the unlawful is not suitable to be the cause of unlawful means will not chanege the status of of such blessing [21]. However, according to Hanafi jurists, the property eventhough the judge gives judgment in his wealth which has been possessed from viodable contract, 1515

5 the ownership is established on it. But such ownership is weak and it is not permissible for the owner to take benefit from it because such wealth has to be removed [21]. It seems that the establishment of the ownership in this instance has no legal signifcant, because such wealth cannot be utilized. The Muslim jurists are of the view that the wealth has to be removed or relinquished from possession. Nevertheless, they have different of opinion whether it is to be returned to its original owner or to be given to the poor and for the interest of public. Ibn Abidin states that the way of tainted acquisition is to be given for donation if it is impossible to return to its original owner [22]. Similarly al-qurtubi of the Maliki jurist also states that the way of repentance from the possesion of unlawful wealth if it is from usury, it is to be return to its original owner. If there is no hope to find the owner, it is to be given for donation on his behalf [17]. Imam al-ghazali of the Shafi i jurist also states that whoever is having wholly in his possession of unlawful wealth, the performance of pilgrimage (haj) is not obliged on him and he is not obliged to pay any expiation money and zakat. It is obligatory on him to relinquish the whole wealth either to be returned to its original owner if heknows the owner or to be given to the poor if he does not know the owner [14]. On the other hand Ibn Qayyim of the Hanbali jurist views that if the payment has been takenfrom a person who spent it with his consent in exchange of something which is unlawful such as wine, swine or fornication, it is not obligatory to return the payment to its owner. This is because he spent it with his own chioce and he has enjoyed with what he has paid for. Thus, it is not permissible to get back what he has spent [23]. The contemporary Muslim jurists are also of the view that the ownership of unlawful wealth which is acquired with the consent of owner is not established on a person who acquired it. [5, 10, 24] In this regard, al-ba li asserts that not all means of acquiring ownership is lawful. There are means where the ownership is not established. They are the means where Islamic law disapproved and prohibited such as the acquisition of wealth by means of gambling, usury, trading of wine, swine and other prohibited item [10]. The reason is because ownership is not established except with the approval of the law and through the means that are regulated by the law. Unlawful means of acquiring ownership is not recognized by Islamic law. Authority on Non-establishment of Ownership on Unlawful Wealth: This is based on the verses of the Qur an and the Sunnah. There are many verses of Qur an on this issue and among other are the following verses: But Allah hath permitted trade and forbidden usury. (2:275) O ye who believe!fear Allah and give up what remains of your demand for usury, if ye are indeed believers. (2:278) O ye who believe!intoxicant and gambling, (dedication of) stone, and (divination by) arrow, are an abomination of Satan s handiwork; Eschew such (abomination), that ye may prosper. (5:90) There are also many Sunnah reported from the Messenger of Allah and some of them are as follows: From Abi Mas ud Uqbah ibn Amru, he said: The Messenger of Allah (peace be upon him) forbade taking the price of dog, money earned by prostitution and the earning of soothsayer. (Al-Bukhari, Muslim, Abu Daud, al-tirmizi, al-nasa I and Ibn Majah) Abu Hurayrah reported the Messenger of Allah (peace be upon him) as saying: Allah forbade wine and the price paid for it, and forbade dead meat and the price paid for it and forbade swine and the price paid for it. (Abu Daud) The Messenger of Allah (peace be upon him) says : when Allah declared eating of a thing forbidden for a people, He declares its price also forbidden for them. (Abu Daud) CONCLUSION The discussion clearly shows that ownership is not established on a person who possesses unlawful wealth whether it is unlawful because of its substance or unlawful because of its acquisition either with or without the consent of the owner. This indicates that Islamic law does not recognize the ownership of unlawful wealth of all types. The reason is because the acquisition of wealth by unlawful means in some way is an act of injustice and oppression towards others and in other way it causes and brings harm to the society. Thus, injustice has to be avoided and harm has to be removed.this is in line with one of the basis principles of Islamic law i.e. the realization of justiec and in agreement withfiqh legal maxim harm must be eliminated. 1516

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